Opinion
112,748.
05-08-2015
In the Interest of B.L.S.
Mario Hamrick, of Kansas Legal Services, of Hutchinson, for appellant natural father. Cheryl I. Allen, assistant district attorney, and Keith E. Schroder, district attorney, for appellee.
Mario Hamrick, of Kansas Legal Services, of Hutchinson, for appellant natural father.
Cheryl I. Allen, assistant district attorney, and Keith E. Schroder, district attorney, for appellee.
Before HILL, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
The natural father of B.L.S. appeals from the decision of the district court to terminate his parental rights. He alleges two main points of error: (1) There was insufficient evidence to support the district court's determination that he is unfit and that the conduct or condition rendering him unfit is unlikely to change in the foreseeable future; and (2) the district court abused its discretion in finding termination would be in B.L.S.' best interests. We disagree and affirm.
Factual and Procedural History
Father and Mother are the natural parents of B.L.S., bom in 2009. On February 3, 2014, a child in need of care (CINC) petition was filed in Reno County District Court, alleging that B.L.S. was a CINC because he was witnessing domestic violence in Mother's home, Mother was using illegal drugs, and Mother was not consistently taking her prescribed medication for bipolar disorder. Father was incarcerated at the time the petition was filed.
On February 20, 2014, the State filed an application for an ex parte order of protective custody alleging that an emergency existed which threatened the safety of B.L.S. because Mother tested positive for THC, methamphetamine, and amphetamine following a pretrial court hearing. At a temporary custody hearing, the district court found that an emergency existed which threatened the safety of B.L.S. and ordered B.L.S. to be placed in the temporary custody of the Department for Children and Families (DCF). Specifically, the district court determined:
“[M]other is not taking medication or getting treatment for mental health issues and is using dangerous illegal drugs including methamphetamine. The child's father is imprisoned and unable to care for the child. The mother, who is the caretaker of this child, has not been providing a safe place for the child, subjecting him to situations of domestic violence with her partner ... and not providing a safe, structured, drug-free home for the child. This child is at risk because of his surroundings and his mother's instability.
“... For the reasons set forth in the preceding paragraph, the court finds that this child should be placed in a home without mental health, substance abuse, or domestic violence issues.”
The court also ordered Mother to undergo a substance abuse assessment and a psychological evaluation.
On February 28, 2014, Mother knowingly and voluntarily entered a statement of no contest to the allegations that B.L.S. was a CINC; the court found Father in default and made a finding that B.L.S. was a CINC. Additionally, the court found it to be in B.L.S.' best interests to remain in the custody of DCF for appropriate out-of-home placement.
On July 15, 2014, the State filed a motion seeking a finding of unfitness and for termination of parental rights. At the termination trial held September 3, 2014, four witnesses testified: (1) Daetta Cotton, a DCF licensed social worker; (2) Mother; (3) Father; and (4) Sonya Sanborn, a social worker with St. Frances Community Services (SFCS).
Cotton testified she began working with Mother, Father, and B.L.S. in 2012. At the time, B.L.S. was living with Father while Mother was out of state. Cotton said B.L.S. was placed in police protective custody due to a domestic dispute between Father and his girlfriend. Father resumed custody of B.L.S. following a temporary custody hearing. Next, Cotton testified that during a prior CINC case occurring in 2012, Mother returned to Kansas after being gone for approximately 10 months. Family preservation services were put into place for both Father and Mother at this time.
Mother gained custody of B.L.S in 2012 when Father went to prison for aggravated battery and aggravated assault. Mother's custody of B.L.S. began well until Cotton began having concerns about drug use and domestic violence occurring in Mother's home. Mother's boyfriend beat Mother in front of B.L.S. and her other child, and the children were able to describe in detail the things he did to Mother. The State resumed custody of B.L.S. in February 2014. Cotton testified that Father was unable to work with DCF due to his incarceration and that Mother was unwilling to work with DCF.
At the time of trial, Mother was in prison on drug charges. Mother testified that she was arrested 1 week before the trial and had used methamphetamine 2 weeks before her arrest. However, Mother acknowledged that in addition to her drug use, she felt B.L.S. was taken out of her home due to the domestic violence between her and her boyfriend. Following the removal of B.L.S. from her home, Mother went to inpatient treatment but left after a matter of hours because she was not impressed with the curriculum and was not allowed to have her guitar. Mother stated she had not had a job in 6 months, was currently homeless, and admitted she had not completed a mental health intake because she had completed one less than a year ago.
Father was still incarcerated at the time of the termination trial due to convictions for aggravated assault and aggravated battery. Father resided at Lansing Correctional Facility, and his earliest release date was February 1, 2015. Father's incarceration began on August 25, 2013, and the record is silent on whether Father has since been released.
Father testified he was only able to work with SFCS through monthly telephone calls and was allowed to have visits with B.L.S. over the telephone. While in prison, Father attended various classes; he completed a substance abuse program and took individual therapy. He was taking a welding class at the time of trial and had completed the prerequisite course while in prison. Father testified he believed this welding class would give him the skills to financially support B.L.S. after serving his prison sentence. Father admitted his own actions made him unavailable to parent B.L.S. at the time of the termination trial.
Sanborn testified she began working with Mother, Father, and B.L.S. in March 2014 after B.L.S. had been removed from Mother's home. While working with the family, Sanborn had personal contact with Mother and telephonic contact with Father. Sanborn described the case plans designed to assist Mother and Father in their attempt to reintegrate with B.L.S. Mother was to complete a mental health intake and follow its recommendations, complete a drug and alcohol assessment and follow any recommendations, maintain appropriate housing, and seek services through vocational rehabilitation. Father was to maintain contact with SFCS and to take classes through the correctional facility. Sanborn testified that Mother completed no tasks on her plan and continued using drugs. Sanborn testified that due to Mother's failure to complete her plan tasks and Father's incarceration, neither parent did anything to put them in a position to be reintegrated with B.L.S.
At the end of the trial the district judge terminated Mother and Father's parental rights. In reaching the decision to terminate Father's parental rights, the district judge principally relied on the factor described in K.S.A.2014 Supp. 38–2269(b)(5) : conviction of a felony and imprisonment.
Mother chose not to appeal, but Father timely appeals the district court's order.
Was there Sufficient Evidence to Support Finding Father Unfit?
If a child is adjudicated a child in need of care, parental rights may be terminated “when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” K.S.A.2014 Supp. 38–2269(a). The Revised Kansas Code for Care of Children, K.S.A.2014 Supp. 38–2201 et seq ., lists a number of nonexclusive factors the district court must consider in determining a parent's unfitness. See K.S.A.2014 Supp. 38–2269(b) and (c). Any one of the factors may, but does not necessarily, establish grounds for terminating a parent's rights. See K.S.A.2014 Supp. 38–2269(1). The district court is not limited only to the statutory factors in making a determination of unfitness. See K.S.A.2014 Supp. 38–2269(b).
When reviewing a district court's findings on this point, our standard of review is clear: The district court's findings must be supported by clear and convincing evidence. K.S.A.2014 Supp. 38–2269(a). We determine whether such evidence could have convinced a rational factfinder such facts were highly probable, i.e., by clear and convincing evidence, when viewed in the light most favorable to the State. In re B.D.-Y., 286 Kan. 686, 705, 187 P .3d 594 (2008). In making this determination, we do “not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact.” 286 Kan. at 705.
Was Father unfit?
Father makes three arguments against the district court's unfitness finding: (1) the allegations in this case are related only to Mother and her living situation and not to him; the State made no allegations of abuse or neglect of B.L.S. by him and he completed his assigned case plan tasks; and (3) the district court improperly relied on his incarceration as the only reason to terminate his parental rights.
First, while Father cites to In re S.D., 41 Kan.App.2d 780, 789–90, 204 P.3d 1182 (2009), to support his position that incarceration alone is insufficient to find unfitness, Kansas law clearly states that the existence of a single factor, standing alone, may establish grounds for termination of parental rights. K.S.A.2014 Supp. 38–2269(f). The undisputed evidence is that Father was incarcerated at the time of the termination trial due to his own actions and was thus unavailable to parent B.L.S.—the statutory basis upon which the district court based its unfitness finding. See K.S.A.2014 Supp. 38–2269(b)(5). Second, Father ignores the 2012 CINC case in which B.L.S. was removed from Father's home due to domestic violence between Father and his girlfriend and the deplorable conditions in Father's home, thus establishing evidence of Father's parental unfitness prior to his incarceration. The district court specifically noted the 2012 CINC case in reaching its decision.
Accordingly, we conclude, after a review of the entire record in the light most favorable to the State, there is clear and convincing evidence in the record to support a finding of unfitness.
Was Father's unfitness likely to change in the foreseeable future?
Father also argues the district court did not have clear and convincing evidence on the record to establish that his unfitness would not change in the foreseeable future.
Once the district court finds present unfitness, our next step is to determine whether clear and convincing evidence supported the district court's determination that Father's behavior was unlikely to change in the foreseeable future. See K.S.A.2014 Supp. 38–2269(a). The term “ ‘foreseeable future’ “ is measured from the child's perspective and takes into account a child's perception of time. In re S.D., 41 Kan.App.2d at 790. This court has considered periods of time as short as 7 months to be the foreseeable future from a child's perspective. 41 Kan.App.2d at 790. A court may predict a parent's future unfitness based on his or her past history. In re Price, 7 Kan.App.2d 477, 483, 644 P.2d 467 (1982).
Father's earliest release date from prison was February 1, 2015, six months after the termination hearing. Noting B.L.S.' youth, and in light of the fact that we review the evidence in the light most favorable to the State, we conclude the district court's determination that Father's unfitness would not change in the foreseeable future was supported by clear and convincing evidence.
Was Termination in the Best Interests of B.L.S.?
Because it hears the evidence directly, the district court is in the “best position to [determine] the best interests of the child,” and an appellate court cannot overturn the determination without finding an abuse of discretion. In re K.P., 44 Kan.App.2d 316, 322, 235 P.3d 1255, rev. denied October 7, 2010. An abuse of discretion occurs when no reasonable person would agree with the district court or when the court bases its decision on an error of fact or an error of law. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). “In determining whether the district court has made a factual error, we review any additional factual findings made in the bestinterests determination to see that substantial evidence supports them (recognizing that the preponderance-of-the-evidence standard applies in the district court).” In re R.S., 50 Kan.App.2d 1105, 1116, 336 P.3d 903 (2014). In considering termination, “the court shall give primary consideration to the physical, mental and emotional health of the child.” K.S.A.2014 Supp. 38–2269(g)(1).
As previously discussed, Father was incarcerated for aggravated battery and aggravated assault, rendering him unavailable to parent B.L.S. as a result of his own actions. Prior to Father's incarceration, B.L.S. was once removed from Father's care due to a domestic dispute in Father's home. As there is evidence on the record indicating that Father is unavailable to parent B.L.S. and has displayed characteristics of unfitness prior to his incarceration, we find that the district court did not abuse its discretion in determining severance of Father's parental rights was in the best interests of B.L.S.
Affirmed.